[sixties-l] Fwd: Florida Common Law and Election "Irregularities"

From: Kali Tal (kali@kalital.com)
Date: 11/11/00

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    >Date: Sat, 11 Nov 2000 10:27:01 -0500
    >Reply-To: nathan.newman@yale.edu
    >Sender: owner-triumph-of-content-l@usc.edu
    >From: "Nathan Newman" <nathan.newman@yale.edu>
    >To: <Undisclosed-Recipient:@mr1.its.yale.edu;>
    >Subject: Florida Common Law and Election "Irregularities"
    >X-Priority: 3
    >X-Rcpt-To: kali@kalital.com
    >
    >=====================================================
    >    Yale Law Students CAMPAIGN FOR A LEGAL ELECTION
    >  Yale Law School 127 Wall Street New Haven, CT 06511
    >         (203) 432-4888 spin@pantheon.yale.edu
    >=====================================================
    >
    >FLORIDA COMMON LAW AND ELECTION "IRREGULARITIES"
    >The Yale Law School Campaign for a Legal Election
    >
    >According to a CNN on-line report, Florida "Judges have the
    >discretion to invalidate elections and impose lesser remedies if
    >they agree with plaintiffs that there were improprieties on
    >Election Day."(1)  That statement is precisely wrong. Such judges
    >have zero discretion - they are required to declare the election
    >void.
    >
    >That bright-line rule comes from the Florida State Supreme
    >Court's decision in Beckstrom v. Volusia County Canvassing
    >Board, 707 So.2d 720 (Fla. 1998).  Although the court in that
    >case validated the election in question (which hinged on the
    >legitimacy of the absentee voting process, a substantial
    >difference from the Presidential contest), it made clear that
    >the law in Florida requires judges to void elections in which
    >there is doubt about the true will of the voters.  There are
    >several principles in that decision worth highlighting:
    >
    >1) ELECTION IRREGULARITIES ARE APPROPRIATELY RESOLVED IN COURT.
    >
    >"It appears that the validity of an election . . . is
    >an issue of great public importance whose resolution
    >is required by the high court . . . ."(2)
    >
    >  Note the use of the word "required"; we are not talking
    >about whether it would be in the best judgment of all concerned,
    >or whether it is politically responsible or wise for either
    >candidate to support a legal challenge.  The law in Florida
    >demands that a court resolve the issue when there is a
    >legitimate concern as to which candidate the voters have chosen.
    >When people like Karen Hughes, Bush's Communications Director,
    >utter remarks like "We certainly hope the Democrats would stop
    >this talk of endless legal battles," and "I hope the vice
    >president and his campaign officials would think through their
    >responsibility to this country and to the process," she is
    >arguing against the rule of law.(3)
    >
    >2) THIS IS ABOUT THE RIGHTS OF CITIZENS, NOT CANDIDATES.
    >
    >  "The real parties in interest here . . . are the
    >voters.  They are possessed of the ultimate interest
    >and it is they whom we must give primary
    >consideration."(4)
    >
    >  Al Gore and George W. Bush are not the people whose rights
    >may have been violated (although one of them will be very sore
    >when this is all over).  The thousands of voters who were
    >confused by the ballot and either voted for the wrong candidate
    >or had their ballots thrown out are the ones who have been
    >deprived of that most basic right in a democracy, the right to
    >vote.  They are the people we should be concerned about, whether
    >they meant to vote for Al Gore or George Bush or someone else.
    >
    >3) THE JUDGE WHO HEARS THIS CASE WILL HAVE NO CHOICE BUT TO VOID
    >THE ELECTION.
    >
    >"[I]f a court finds substantial noncompliance with
    >statutory election procedures and also makes a factual
    >determination that reasonable doubt exists as to
    >whether a certified election expressed the will of the
    >voters, then the court . . . is to void the contested
    >election, even in the absence of fraud or intentional
    >wrongdoing."(5)
    >
    >As with the first point, there is no discretion here - note
    >the language - a judge "is to void", not "may void." According
    >to a political scientist quoted by CNN, "It would take a
    >tremendously courageous judge to take responsibility for
    >[voiding an election]. That judge or that panel of judges would
    >be taking responsibility for deciding who is the next president
    >of the United States."(6)   Although whichever judge (or panel of
    >judges) hears this case will face a great deal of political
    >pressure, and indeed must be courageous enough to withstand it,
    >he or she (or they) has little choice in the matter.  The
    >application of the law requires that this election be voided,
    >for two reasons:
    >
    >A) THERE HAS BEEN CLEAR, SUBSTANTIAL NON-COMPLIANCE
    >WITH FLORIDA ELECTION LAW AS REGARDS THE LAYOUT OF THE
    >BALLOT.
    >
    >Florida law clearly states that the ballot punch holes must
    >be to the right of the candidates' names, and that the Democrat
    >be listed as the second candidate on the ballot.(7)   The law exists
    >precisely to prevent voter confusion.  In Palm Beach, however,
    >the holes were to the left of some names, and the one to punch
    >for Gore was the third one down.  That elected Democrats may
    >have okayed this ballot is totally irrelevant; again, we are not
    >concerned with the rights of political parties or candidates,
    >but rather with the rights of voters.
    >
    >B) THERE "EXISTS REASONABLE DOUBT" AS TO THE EXPRESSED WILL
    >OF THE VOTERS.
    >
    >This is a no-brainer.  The election hinges on 327 votes.
    >According to CNN, Patrick Buchanan received 3,407 votes in Palm
    >Beach County, a number even he admits is too large. "I don't
    >doubt a number of those ballots, of those votes that were cast
    >for me,  probably were intended for Vice President Gore," he
    >confessed to Larry King. Considering that Gore received 62
    >percent of the Palm Beach Vote overall, there is little doubt
    >that the confused votes for Buchanan could have swung the
    >election to Gore.(8)   Add to that the discounted 19,000+ ballots,
    >and there is simply no question about whether reasonable doubt
    >exists.  Huge doubt exists.
    >
    >  Given the two clear facts - that there was substantial non-
    >compliance that resulted in doubt as to the expressed will of
    >voters, the Florida judges who hear this case have no choice but
    >to void the election.  In so-doing, they will not be deciding
    >"who is the next president of the United States," because until
    >the re-vote is counted, we cannot know who that will be (and,
    >given the network election-night fiascos, we should all be wary
    >of any predicted outcomes).  Rather, they will be affirming the
    >voting rights of the citizens of the Great State of Florida.
    >
    >
    >Notes
    >
    >1.   Reported at:
    >http://www.cnn.com/2000/LAW/11/09/election.remedies.florida.pol/index.html
    >2.  Beckstrom, 707 So.2d at 724.  This statement is made in the context of a
    >finding of gross negligence, but no fraud,
    >with regard to absentee ballots.  Gross negligence is later defined by the
    >court to mean "negligence that is so
    >pervasive that it thwarts the will of the people." Id. at 725.  Surely, the
    >validity of an election called into question by
    >gross negligence at the actual voting booths is equally an issue of great
    >public importance whose resolution is
    >required by the high court. . . ." Id. at 724.
    >3.  Reported at:
    >http://www.cnn.com/2000/ALLPOLITICS/stories/11/10/election.president.03/inde
    >x.html
    >4.  Id. at 724 (internal quotes and citation omitted).
    >5.  Beckstrom, 707 So.2d at 725.
    >6.  Reported at
    >http://www.cnn.com/2000/LAW/11/09/election.remedies.florida.pol/index.html#1
    >7.  Fla. Stat.  101.191
    >8.  The facts and quotes in this section can all be found at:
    >http://www.cnn.com/2000/LAW/11/10/palm.beach.controver/index.html
    



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